The IACHR against colonialism

Only 23 members of the 35-country Organization of American States have ratified the Pact of San Jose, meaning that the Inter-American Commission and Court are not binding to the rest [AFP]

Although the Kenya Human Rights Commission has been able to put crimes committed under British colonialism on trial, the Inter-American system of human rights is having a hard time simply trying to hold the present accountable. A British high court ruled that three elderly Kenyans who were tortured by colonial authorities in the 1950s could sue the British government. The Mau Mau case was a legal victory that put European history on trial. In the Americas, in contrast, for the last two years some Latin American governments that claim to stand against colonialism have been attacking the Inter-American Commission of Human Rights (IACHR), a globally recognised heavyweight. Ironically, just as the British government was facing its responsibility for colonial crimes committed decades ago, the government of Venezuela was announcing its withdrawal from the IACHR.

Yesterday, as the General Assembly of the Organization of American States (OAS) met in Washington, DC to negotiate "reforms" to the IACHR, we should remember that colonialism is a crime committed by states. Holding colonial states accountable means, first and foremost, to hold governments accountable. Rather than claiming sovereignty like the US to escape international accountability, Latin American governments should demand more accountability from countries that have not yet signed the Pact of San José to make court decisions by the Inter-American system legally binding across the hemisphere.

The Commission on trial

Yesterday's discussion on how to reform the IACHR was guided by a proposal put forward on March 11, 2013 at a meeting in Guayaquil, Ecuador, that gathered many signatories to the Pact of San José. The eight-point proposal is not as bad as it could have been, leaving intact the Commission's precautionary measures and ability to receive petitions directly from individuals. Yet it nonetheless suggests changes that could significantly erode the autonomy of the human rights watchdog if implemented.

The proposed reforms entail equalising budgets and unifying reports. This is designed to cut external resources and to limit funding to member governments only, thus preventing non-member states that have not ratified the Pact of San José from financing the IACHR. The target is the Special Rapporteur for Freedom of Expression, an organ financially autonomous from member-state contributions that produces annually an extensive, independent report putting states on the spot.

The reforms also seek to relocate the Commission from Washington, DC to a country that has ratified the Pact of San José, which the US has not. Most alarmingly, the proposal wants to develop a "code of conduct" to delineate and constrain the power and responsibilities of commissioners and rapporteurships. Thus, in addition to cutting resources, the reforms seek to curb, if not silence, the authoritative voice of the Commission.

It's easy to comprehend the discontent of some governments with an independent organisation that questions their human rights records. The IACHR is a supranational organisation whose job is to receive individual complaints for crimes left unaddressed by member-states, and to seek redress and compensation for victims. It fulfilled this mandate admirably during decades of military dictatorship in the Southern Cone and civil wars in Central America, denouncing systematic torture and disappearances. It continues to do so today, demanding that a powerful country like Brazil establishes a Truth Commission for past crimes (a commission was created by the Dilma Rousseff government in 2012) and to stop mega-projects like the Belo Monte dam in indigenous territory without prior consultation.

Governments have repeatedly clashed with the IACHR. Brazil cut funds and withdrew its representative in response to being called upon the carpet over the Belo Monte project. And the Bolivarian governments of Venezuela, Ecuador and Bolivia have protested the IACHR's inquisitive tone when they have been criticised for censoring the media or violating civil rights. Some level of collective discontent on the part of regional governments with the IACHR is desirable - protest underscores how efficient the regional mechanisms of human rights can be in curbing abuses. It is problematic, however, when governments, particularly those on the Left, try to destroy regional mechanisms of human rights accountability.

Neocolonialism?

They have a point. Almost a third of the member-states of the OAS, most notably the US, have not ratified the Pact of San José. This means that decisions of the Inter-American Commission and Court are only binding for 23 out of the 35 countries that comprise the OAS system. This results in a sharply unequal system of legal accountability across the region.

"There is indeed a strong argument to be made that the system is unequally observed throughout the continent. And the US, with all self-righteous discourse on human rights, has a very dark record of its own that is not subject to any external accountability."

President Rafael Correa is correct to point out that Ecuador is one of only seven Latin American countries that has signed all inter-American instruments of human rights (such as the Convention of Belém do Pará) and therefore enjoys considerable legitimacy regarding its positions on human rights. Correa's recent speech in Guayaquil emphasised the contradictions of having the Commission of the Inter-American human rights system based in the US, a country where the death penalty is legal and that arbitrarily kills alleged terrorists with drones without trials.

Bolivarian governments accuse the IACHR of serving US neocolonialism. Last week, President Evo Morales announced [SP] that Bolivia might withdraw from the Commission because it perpetuates US hegemony. As he demonised the IACHR as a site of capitalist and pro-imperialist right-wing sectors, he claimed that Bolivia could deal with human rights from its own sovereign position.

There is indeed a strong argument to be made that the system is unequally observed throughout the continent. And the US, with all self-righteous discourse on human rights, has a very dark record of its own that is not subject to any external accountability. But there are also serious flaws with the Bolivarian critique.

Moving beyond US-centrism

Defence of the IACHR could rely on the facts. We should recall the Commission's past achievements, particularly its role in protecting Latin American individuals from military repression conducted under the auspices of Operation Condor between their own governments and the US. We could also point out what its critics fail to mention. For instance, that the IACHR elected Colombian attorney Catalina Botero Marino as Special Rapporteur for Freedom of Expression, a Latina who worked as National Director of the Office for the Promotion and Dissemination of Human Rights and in the Office of the People's Defender in Colombia.

Most importantly, we could read the reform process in light of the opposition of some governments upset by the Commission's rulings against their violations of the human rights of their own citizens. For example, the IACHR ruled in favour of the Sarayaku indigenous community in the decade-long legal battle against oil exploration on their territory in the Ecuadoran Amazon, while also investigating the controversial construction of a highway through the TIPNIS indigenous nature reserve in Bolivia.

Yet another argument has to do with the US role as the dominant actor in Latin American policy-making. No one looks to Afghanistan as an example when it comes to human rights, so why should Latin America consider the US as the natural leader in the Americas? From the Guantanamo base to drone strikes, the US can hardly pose as a neutral, high-minded referee when it comes to human rights. The fact that the IACHR is not legally binding to the US is not a legitimate reason to undermine the system.

Bolivarian governments accuse the US of neocolonialism in the region. If Latin America is trying to move beyond colonialism, it must not subordinate itself to mimic US standards of human rights. Just like Dipesh Chakrabarty argued that Europe is inadequate in thinking through what constitutes the political in India, the US is an equally misguided paragon to account for the political modernity of Latin America.

Genuine commitment to anti-imperialism is not about conforming to hegemonic sovereignties practiced in the global north - undermining the IACHR like the US - but about the consolidation of democratic and inclusive political structures of our own. And few organisations in Latin America are more worthy than the IACHR.

Although the Inter-American court is a hemispheric institution, it has been used strongly by and for Latin America. Instead of repudiating it, we should claim it as one of our most beautiful achievements - and use it as a valuable legal tool against all forms of state colonialism.

Manuela Picq has just completed her time as a visiting professor and research fellow at Amherst College.